Monday, July 20, 2009

How Expansive is the Right to Privacy?

During Sotomayor’s confirmation hearings last week, questions about the right to privacy came up frequently from both Democratic and Republican Senators.

The right to privacy is usually thought to reside in the 14th and 4th amendments among others. Here’s the text of the relevant part of the 14th amendment:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The fourth amendment says this: “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”

I’m willing enough to accept that there’s an implicit right to privacy in the constitution. My question is why we’ve used it in such a limited manner. For example, the right to privacy gives women the power of life and death over their fetus when it’s in the womb. But the right to privacy doesn’t allow them to smoke pot or use heroine.

This inconsistent application of the right to privacy is especially interesting. You could argue on one hand that “we don’t even let a person smoke pot, how can we give them the power of life or death over a developing baby.” Or you could argue, “we even give people the ability to terminate a future person. How can we not allow them to smoke pot under the right to privacy?”

My hunch is that the primary reason for the inconsistency is our emotion. Women (and many men) can empathize with the plight of a woman who has learned she’s pregnant and wants an abortion. If they were in her shoes, they would want to be able to have an abortion and privacy. But people are terrified that drug dealers could corrupt their children and turn them into dangerous addicts. Most people have never done heroine or other hard drugs. So they can’t relate, and don’t want to relate.

What do you think? Does the right to privacy include the right to do drugs? Do we interpret the right to privacy consistently? Sound off in the comments section.

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